How Long Does a Foreclosure Stay on Your Credit Report?

Nobody chooses to fall behind on their mortgage payments. The loss of a home to foreclosure is emotionally devastating. It’s typically the result of circumstances beyond your control such as loss of a job, loss of wages due to a serious injury or long-term illness, or another of life’s unwelcome misfortunes. Most of the time, a foreclosure is unavoidable, and leaves people worried about their future credit worthiness. One of the most common questions for people facing foreclosure is “How long will a foreclosure stay on my credit report”?

The answer is that a foreclosure stays on your credit report for 7 years. However, its effects lessen as the years pass, as you take steps to reestablish your credit.

How Will Your Post-Foreclosure Credit Report Affect You?

Unfortunately, most people don’t realize how much their credit score affects ordinary aspects of their daily lives. For example, your credit score is often used

  • By potential employers, to weed out candidates with low scores
  • By insurance companies, to set rates and even to deny people coverage
  • By utility companies who tend to charge hefty security deposits if your score is low
  • By landlords, to screen potential renters (Frequently, this is an unwelcome surprise for people who have lost their home due to foreclosure only find this out when they’re trying to find a new living arrangement.)

What Can You Do to Fight Back?

The first thing to do is to start immediately to begin the process of rebuilding your credit. You’d be surprised how many credit card providers will approve you for a high-interest card very soon after a foreclosure or even after bankruptcy proceedings. Use the card for small purchases, and pay the balance back each month in full to start reestablishing good credit.

Consult with a lawyer who specializes in foreclosures, bankruptcies and class action lawsuits. It’s not uncommon to have a foreclosure removed from your credit report if the bank makes an error, including “rubber stamping” foreclosure documents or not following proper procedure.

For these reasons, it makes sense to at least consult with a lawyer to see if there might be a remedy for your case.

If you’re a California homeowner or business owner who’s facing foreclosure, or who’s property has already been foreclosed, Call Preston Law at (415) 842-4666 for a free consultation or fill out our contact form.

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Legal Challenges to the Consumer Financal Protection Bureau

The Consumer Financial Protection Bureau (CFPB) is a federal government agency charged with consumer protection in the financial sector. It was developed and staffed as part of the Dodd-Frank Act, and came about as the result of the financial malfeasance that caused the global financial meltdown of 2008.

Two of the provisions of the agency removed much of the pressure other federal agencies face from lobbyists and politicians: agency funding comes from the Federal Reserve, rather than Congress, and the Director, once appointed by the President, can only be removed for cause.

A Federal Appeals court ruled that the structure of the CFPB was unconstitutional, as it gave the agency power to operate without the checks and balances of a three-part federal government system. They offered a solution: put the agency under the power of the President and the Executive Branch, and change the Director’s position to one that could be appointed and removed by the President. The agency is appealing the court decision.

Many critics of the Dodd-Frank Act and the CFPB have cited the power of the director to act autonomously. Pressure to change the structure of the bureau to a 3 or 5 person committee, such as is used in other consumer watchdog groups like the Federal Trade Commission and the Securities and Exchange Commission, exists in Congress. But these agencies are notorious for being bogged down in bureaucracy and for bending to the will of Congress, who holds their purse-strings.

The Dodd-Frank Act is also under pressure, and has been the target of several federal lawsuits brought by states against the government, claiming the law gave unchecked power to the government to oversee the financial services sector, and was unconstitutional. The several lawsuits have been struck down for lack of standing. The transition team of the newly elected president has vowed to dismantle Dodd-Frank as soon as possible.

For more information on agency litigation, please contact us.

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Ten Strategies for Stopping Robocalls

RobocallsAnyone who has received repeated robocalls—or recorded sales calls—know how annoying and frustrating it is. Although registering one’s number on the Do Not Call Registry can get rid of many unwanted phone calls, it does little for robocalls. The federal Telephone Consumer Protection Act prohibits companies from using robocalls unless the consumer has given written permission for the caller to call. With respect to wireless phone numbers, any unsolicited non-emergency robocall is illegal.

Even though the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC) have clamped down by investigating and stopping companies that continue to use robocalls, increasingly sophisticated technology has made it easier for businesses and scammers to continue this harassment.

So how can you stop or, at least, reduce robocalls? Here are ten tips.

Enroll all of your phone numbers on the Do Not Call Registry. Registration is free, and, once enrolled, your number stays on the list indefinitely.

Do not answer the call.

Robocall machines can detect when a call is answered, which the caller proof that your number is good—and that may increase the volume of calls.

Talk with Preston Law Offices about how to gather evidence for a lawsuit.

Preston Law Offices has extensive experience litigating consumer claims and especially TCPA claims. The new wave of robocall technology has made investigating companies that violate the TCPA much harder, so work with an experienced lawyer from the start to follow the money trail back to companies who profit from TCPA violations.

Don’t give out your number to any business unless necessary. You can get a telephone number from Google Voice, which provides a lot of options for screening calls.

Tell companies with whom you have done business to stop calling you. Notate the date of the request, the person with whom you have spoken, and notify the FTC if these calls do not stop.

File a complaint with the FTC and the FCC.

Use a free service that blocks all robocalls like Nomorobo. With simple information such as your wireless carrier and email address, the tool uses algorithms to identify and block robocalls. Currently, however, Nomorobo is only available on certain VoIP providers in the United States.

Set up anonymous call rejection. This is a free landline and wireless number feature for most phone companies that automatically blocks any calls from numbers with blocked caller ID information.

Purchase a robocall-blocking device that plugs into a landline’s phone line and permits you to blacklist unwanted numbers and whitelist acceptable ones.

Obtain a cell phone app like Truecaller or PrivacyStar that screens and blocks incoming robocalls to your wireless number.

For more information, please contact Preston Law Offices. We can help.

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Debt Collection in California: What is the Statute of Limitations?

Statute of Limitations CA

Under California law, debt has a statute of limitation. The length depends on the type of debt and the creditor.

Claims for breach of written contract—which includes normal consumer debt, like credit card debt—has a four year statute of limitations. Cal. Code Civ. Proc. § 337. Debt collectors are required under California law to tell the person contacted if the statute of limitations has passed on their debt. If the account has had recurring payments, the four year time limit starts with the last payment. (Cal. Code Civ. Proc. § 337(2).)

If the debt is the result of an oral contract, such as a handshake agreement to buy something for a specific price, the statute of limitations is two years. Cal. Code Civ. Proc. § 339.

If you have debt related to property damage, such as from a property you have been renting, the limit is three years for the debt to be collected. Cal. Code Civ. Proc. § 338.

Even when the statute of limitations is up, the debt can still show up on your credit report. Unpaid debts generally stay on a credit report for seven years. 15 U.S.C. § 1681c.

For more information on the statute of limitations on debt collection in California, please contact us.

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Crushing Student Loan Debt: A Top Consumer Problem

There are many consumer problems in America today. Younger consumers are also facing the crushing burden of student loan debt. According to MarketWatch, Americans have a total of $1.2 trillion student loan debt which is racking up by $2,726.27 every second. Combine these figures with the appalling statistics that 70% of students are graduating from college with debt, and 40 million Americans are saddled with outrageous student loans, and it’s clear to see why this is a real problem for Americans and the economy.

Exorbitant student loan debt prevents consumers from buying homes and cars, or starting a family. That prevents economic growth generally. Improperly-structured loans have left students with impractical monthly payments that look more like a mortgage payment. Many Americans can’t make these payments at all, and even the ones that can are barely paying down the debt because of astronomical interest rates. According to the Wall Street Journal, roughly 43% of student loan borrowers are behind or not making payments.

This is compounded by the fact that most Americans with student loan debt took on that debt in order to advance their career. Some educational institutions made false or misleading representations about average starting salaries and graduate employment rates, but left their students with a diploma that amounts to little more than a worthless piece of paper—despite having a degree, these graduates haven’t been able to start a career that pays enough to afford their student loan payments. They decided to take out student loans believing that after graduation they would find a lucrative job (often based on the schools’ representations and marketing), but have not been able to do so. For-profit schools have been blamed for running up student loan debt in particular.

Student loan debt requires serious attention. There are many loan repayment and loan forgiveness programs, but it is clear they are not adequate to address the situation. For some Americans, it is nearly impossible to repay their student loans under the current repayment plans. This problem not only affects individual consumers, but also the American economy. Even cutting interest rates will not help in many cases—it may be necessary to majorly restructure the entire student loan repayment system to increase the repayment period and modify interest rates in order to create affordable monthly payments. The problem is made worse by the fact that student loan debt cannot be discharged in bankruptcy

unless excepting such debt from discharge under this paragraph would impose an undue hardship on the debtor and the debtor’s dependents.

11 U.S.C. § 523(a)(8). Likewise, many student loans are subject to the Federal Debt Collections Practices Act, which can make things much more difficult for debtors.

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Consumer’s Rights to Access to Information

Controlling the collection and disclosure of information is important, but consumers’ access to data about them held by private actors can often be equally important. The European Union provides a broad right of access under Article 10 of the Data Protection Directive 95/46/EC. In contrast, the US does not have generally-applicable consumer privacy law with the same broad scope as the DPD. The US does have a few statutes that empower consumers rights to access their data. The Fair Credit Reporting Act (15 U.S.C. §§ 1681-1681x) provides that “every consumer reporting agency shall, upon request, and subject to section 1681h(a)(1) of this title, clearly and accurately disclose to the consumer . . . [a]ll information in the consumer’s file at the time of the request[.]” 15 U.S.C. § 1681g(a).  In turn, the term “file” means “all of the information on that consumer recorded and retained by a consumer reporting agency regardless of how the information is stored.” 15 U.S.C. § 1681a(g). This goes well beyond the ordinary credit reports the credit reporting agencies typically pass out. But the FCRA is fairly limited, in that it only applies to credit reporting agencies. The Dodd-Frank Act provides consumers a much broader right to access their personal data:

A covered person shall make available to a consumer, upon request, information in the control or possession of the covered person concerning the consumer financial product or service that the consumer obtained from such covered person, including information relating to any transaction, series of transactions, or to the account including costs, charges and usage data. The information shall be made available in an electronic form usable by consumers.

Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, § 1033, 124 Stat. 1376, 2008 (July 21, 2010) (codified at 12 U.S.C. § 5533(a)). There are some important limitations here, but the Dodd Frank Act defines a “covered person” as “any person that engages in offering or providing a consumer financial product or service,” which covers a long laundry list of products and services: most consumer loans, real estate settlement services, taking deposits, transmitting or exchanging funds, acting as a custodian of funds or any financial instrument, selling, providing, or issuing stored value or payment instruments, check cashing, check collection, or check guaranty services, providing payments or other financial data processing products or services to a consumer, and/or debt collection. See 12 U.S.C. § 5481(6), (15). The Communications Act provides consumers a right of access to their telecommunication data: “[a] telecommunications carrier shall disclose customer proprietary network information [CPNI], upon affirmative written request by the customer, to any person designated by the customer.” 47 U.S.C. § 222(c)(2). (This can be particularly important for consumers dealing with “spoofed” calls, as CPNI includes call detail reports (or call detail records) which can help trace back some spoofed calls to the genuine originating telephone number when regular billing records and caller ID fail.) Finally, the Communications Act also provides consumers a right to their cable data: “[a] cable subscriber shall be provided access to all personally identifiable information regarding that subscriber which is collected and maintained by a cable operator.” 47 U.S.C. § 551(d).

We need to exercise these rights or we lose them. Contact us if you’ve been denied your right to access your information.

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Portfolio Recovery Associates TCPA Litigation Settlement

My co-counsel and I recently obtained preliminary approval of a class settlement of TCPA claims against Portfolio Recovery Associates and related defendants. We are pleased to present the settlement to the approximately 7.4 million class members. The settlement concludes five years of litigation, not only before the federal court in the Southern District of California, but also the California Superior Court for the County of San Diego, the United States Court of Appeals for the Ninth Circuit, and the Judicial Panel for Multidistrict Litigation, as well as years of painstaking negotiation with the Court’s assistance. The settlement will provide millions of dollars of compensation to the class members and substantial prospective protection of their rights under the TCPA with a consent decree.

Due to the number of class members and volume of related inquiries, class members should  first contact the settlement administrator with questions. The settlement administrator’s website should answer most questions about the settlement. If class members need to call to ask questions about the settlement via telephone, they should call 1-888-301-8552. The settlement administrator will forward questions to class counsel that the settlement administrator is not able to answer.

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Motion for summary judgment in TCPA case denied

The defendant in the In re Collecto, Inc. multidistrict litigation proceeding brought an ill-considered and ill-fated motion for summary judgment, arguing that the FCC did not have authority to construe the definition of an “automatic telephone dialing system” under 47 U.S.C. § 227(a)(1).

Arguing against an administrative agency’s interpretation of a statute is usually an uphill battle, but arguing against the FCC’s decisions before a district court inevitably runs afoul of the Hobbes Act, which provides the “court of appeals . . .has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of . . . all final orders of the Federal Communication Commission[.]” 28 U.S.C. § 2342(1). The defendant had some other arguments as to why the Court should not enforce the Hobbs Act (notwithstanding its categorical language) but those argument were not well-taken either. On February 10, the Court denied the defendant’s motion.

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